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SUPREME COURT OF INDIA
Anil R. Dave, Kurian Joseph, Shiva Kirti Singh, Adarsh Kumar Goel and R.F. Nariman, JJ.
Pankajakshi (Dead) Through L.Rs. & Others – Appellants
Versus
Chandrika & Others – Respondents
Civil Appeal No. 201 of 2005 With Civil Appeal No. 8576 of 2014
Decided on : 25-2-2016
(a) Travancore-Cochin High Court Act – Section 23 r/w section 9, Kerala High Court Act, 1958 – Section 9 of 1958 Act repealing all provisions of Travancore-Cochin High Court Act on matters contained in the 1958 Act – Act 1958 not containing any provision corresponding to Section 23 of Travancore-Cochin High Court Act – Hence not repealed by section 9 of 1958 Act – Continues in force. (Para 8)
(b) Administration of justice – Judicial discipline – Repeal of earlier law by subsequent law – Subject matter of the two statutes must essentially be the same and/or that the main object and purpose of the statutes should be substantially similar – Travancore-Cochin High Court Act forming charter for that High Court empowering it to exercise jurisdiction not only in all civil and criminal matters but also in other matters – Enacted to lay down jurisdictions and powers of the said High Court – Subject matter of CPC on the other hand is to lay down procedures in all civil matters and no others – Applicable to all courts, not only High Courts, dealing with civil matters – Held, CPC not corresponding to Travancore-Cochin High Court Act – Not repealing it. (Para 14)
1996(1) S.C.T. 241 : (1996) 1 SCC 69; [1962] Suppl. 2 SCR 741; [1961] 3 SCR 855 – Relied upon
AIR 1965 AP 288; AIR 1959 P&H 123 – Distinguished
(c) Code of Civil Procedure, 1908 – Section 4(1) – Unless specifically provided to the contrary in the Code, any special, local, or other law dealing with any matter specified in the Code, will continue to have full force and effect – Ref. Section 1(2), Code of Criminal Procedure, 1898; and section 5, Code of Criminal Procedure, 1973. (Para 17, 18, 20, 21, 24, 27)
(1981) 1 SCC 107 – Relied upon
AIR 1947 Cal 1 – Referred
(2001) 4 SCC 262 – Distinguished
(d) Code of Civil Procedure, 1908 – Section 4(1) and section 29(2), Limitation Act, 1963 – Specific or express exclusion – Section 4(1) requires specific contrary provision in the Code itself to exclude application of any other law – Section 29(2), on the other hand, requires the other laws to exclude application of section 5 of Limitation Act – No analogy – Contention rejected. (Para 30)
(1974) 2 SCC 133; (1993) 1 SCC 636; (2004) 4 SCC 252 – Distinguished
(e) Code of Civil Procedure, 1908 – Section 98(2) and section 23, Travancore-Cochin High Court Act – CPC is general law applicable to all courts – High Court Act is specific law for the High Court concerned – Section 23 would prevail over section 98(2) CPC. (Para 35)
(2004) 11 SCC 672 – Relied upon
(2002) 5 SCC 548 – Overruled
(f) Administration of justice – Judicial propriety – Special law and general law – Test – Principal subject matter test – Instantly subject matter concerns appeals dealing with any matter before High Court of Kerala only and no other court – Particular perspective – Consequence of difference of opinion between Judges hearing an appeal – Section 23 of Travancore-Cochin High Court Act applying uniformly to all maters civil, criminal or others – Section 98(2), CPC applicable to all courts dealing with civil matter – CPC thus general law and High Court Act special law – High Court Act must prevail over CPC. (Para 36, 37)
(1981) 1 SCC 315 – Relied upon
(g) Constitution of India – Seventh Schedule – List III, Entry 13, List I Entry 95, List II entry 65; List III entry 46 – Civil procedure dealt with differently from jurisdiction and powers of courts – Former cannot displace the latter. (Para 38)
(h) Code of Civil Procedure, 1908 – Section 4(1) and 98(3) – Section 98(3) making explicit what was implicit in section 4(1) – Section 98 being a general provision, not a "specific provision", would not take away effect of Letters Patent – On analogy held, Section 23 of Travancore-Cochin High Court Act, alone is to be applied when there is a difference of opinion between two Judges of the Kerala High Court in any appeal, civil, criminal, or otherwise, before them. (Para 47)
AIR 1921 PC 6 – Relied upon
AIR 1975 Guj. 39 (FB) – Cited with approval
AIR 1929 MAD 641; AIR 1919 Bom 1 (FB) – Referred
(i) Code of Civil procedure, 1908 – Section 98(2) and (3) and clause 26, Lahore Letters Patent – Punjab and Haryana High Court continues to be governed by Lahore Letters Patent – Clause 26 in pari materia with clause 36 of Letters Patent, Bombay and Calcutta – Tej Kaur’s case missing out on this point – Therefore Letters Patent saved by section 98(3) and therefore clause 26 would apply instead of section 98(2). (Para 49)
(1995) 5 SCC 119 – No longer a good law
Per Kurian, J.
(j) Administration of justice – Different Benches of Court – Single Bench and larger Benches – Provisions specifying and demarcating areas for Single Judge and two or more than two Judges – Division Bench hears a matter on account of the seriousness of the subject matter and for enabling two or more heads to work together on the same – Sitting in Division Bench is not as if two Single Judges sit – In Division Bench or in a Bench of larger strength, there is a lot of discussion in-between, clarifications made, situations jointly analysed and positions in law getting evolved. (Para 54)
(k) Code of Civil Procedure, 1908 – Section 98(2) r/w section 4, Kerala High Court Act; section 23, Travancore-Cochin High Court Act, 1125; and section 329, Code of Criminal Procedure, 1973 – No uniformity or clarity with regard to the Judge strength in the event of difference of opinion – Quorum not provided by CPC or Cr PC – In present practice Reference to third Judge virtually becomes a decision of the Single Judge since the differing view is ignored – Reference should always be made to larger quorum – Situation calls for comprehensive legislation stipulating hearing by a Bench of larger strength – High Courts and State legislature to take further steps. (Para 59, 62, 63)
Facts of the case:
Interpretation of section 23 of the Travancore-Cochin High Court Act vis-à-vis section 98(2) CPC is the subject matter of this reference; first by a division Bench and then by a three Judge Bench doubting the decision in the three Judge Bench decision in P.V. Hemalatha v. Kattamkandi Puthiya Maliackal Saheeda, AIR 2002 SC 2445.
Finding of the Court:
Section 23 of the Travancore-Cochin High Court Act remains unaffected by the repealing provision of Section 9 of the Kerala High Court Act, and that, being in the nature of special provision vis-à-vis Section 98(2) of the Code of Civil Procedure, would apply to the Kerala High Court.
Result:
P.V. Hemalatha v. Kattamkandi Puthiya Maliackal Saheeda, AIR 2002 SC 2445: (2002) 5 SCC 548 overruled.
JUDGMENT :
R.F. Nariman, J.
The present appeals arise out of two reference orders - one by a Division Bench of this Court dated 8.11.2010 to 3 learned Judges of this Court, and the second by a 3-Judge Bench of this Court dated 27.8.2014, placing the matter before 5 learned Judges of this Court.
2. The reference order by two learned Judges, after referring to Section 98 of the Code of Civil Procedure, 1908, reads as follows:-
"6. The above view was followed by three Judge Bench Court in P.V. Hemalatha v. Kattamkandi Puthiya Maliackal Saheeda and Anr. AIR 2002 SC 2445. That was a case in which the High Court of Kerala had, relying upon Section 98 of CPC, confirmed the decree under appeal despite difference of opinion between the two Judges comprising the Bench on a question of fact. This Court held that while Section 23 of the Travancore-Cochin High Court Act is the general law, Section 98(2) is a special provision. Section 23 of the Travancore-Cochin High Court Act reads as under:
"23. Reference by Chief Justice.-Where two Judges forming a Division Bench agree as to the decree, order or sentence to be passed, their decision shall be final. But if they disagree, they shall deliver separate judgments and thereupon the Chief Justice shall refer, for the opinion of another Judge, the matter or matters on which such disagreement exists, and the decree, order or sentence shall follow the opinion of the Judges hearing the case."
7. Section 9 of the Kerala High Court Act by which the Travancore-Cochin High Court Act was repealed to the extent of its repugnance may also be extracted. It reads:
"9. Repeal.-The provisions of the Travancore-Cochin High Court Act, 1125 (5 of 1125), insofar as they relate to matters provided in this Act, shall stand repealed."
8. In our opinion Section 23 of the Travancore-Cochin Act is in the nature of a special provision while Section 98(2) is in the nature of general law. As between the two, the former would apply in preference to the latter. The decision of this Court in P.V. Hemalatha's v. Kattamkandi Puthiya Maliackal Saheeda and Anr. (supra) to the extent it takes a contrary view, in our opinion, requires to be reconsidered.
9. That apart, the question whether in an appeal arising out of an order passed by the High Court to which Section 98(2) of the CPC applies, this Court can in exercise of its power under Article 136 of the Constitution direct the matter to be placed before a third Judge to resolve the conflict arising from two differing judgments, has not been examined either in P.V. Hemalatha's or Tej Kaur's case. We, therefore, consider it appropriate to refer to a larger Bench for consideration and an authoritative pronouncement the following two questions:
(1) Whether Section 23 of the Travancore-Cochin Act remains unaffected by the repealing provisions of Section 9 of the Kerala High Court Act. If so, whether Section 23 is in the nature of a special provision vis-a-vis Section 98(2) of CPC.
(2) Whether this Court can under Articles 136 and 142 of the Constitution direct in any appropriate case a reference to a third judge to resolve the conflict arising between two judges of the High Court hearing an appeal, on a question of fact."
3. The 3-Judge Bench in turn referred the matter to a 5-Judge Bench as follows:-
"In the reference order, the 2-Judge Bench has doubted the correctness of the decision of this Court in P.V. Hemalatha v. Kattamkandi Puthiya Maliackal Saheeda and Anr. Since the decision has been given by a 3-Judge Bench in P.V. Hemalatha, we are of the view that correctness of the decision in P.V. Hemalatha has to be considered by a Bench of 5 Judges.
2. The matter is, accordingly, referred to a Bench of 5 Judges.
3. The matter may be placed before the Chief Justice for appropriate administrative order in this regard.
S.L.P. (Civil) No. 34457 of 2010
Leave granted.
2. The issues involved in the present Appeal are identical to the issues that arise in Civil Appeal No. 201 of 2005. Civil Appeal No. 201
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